Judge hears appeal of cop suspended for kissing police explorer

Decision to come within a week

Updated 10:00 pm, Thursday, April 15, 2010

Seattle Police Officer Rob Mahoney, right, at a Thursday appeal hearing in King County Superior Court. His attorney, Alex Higgins, is on the left. (Casey McNerthney/seattlepi.com)

Seattle Police Officer Rob Mahoney, right, at a Thursday appeal hearing in King County Superior Court. His attorney, Alex Higgins, is on the left. (Casey McNerthney/seattlepi.com)

Judge hears appeal of cop suspended for kissing police explorer

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A King County Superior Court judge is expected to make a decision within a week on the discipline to a Seattle police officer that forcibly kissed an 18-year-old woman under his tutelage in the police Explorers program.

Rob Mahoney appealed his 30-day suspension and disciplinary transfer he received after a review by the former police chief.

In an appeal hearing Thursday, Mahoney's attorney, Alex Higgins, said the significance of this case and the publicity has tarred Mahoney for the for the rest of his career -- to the point where he can't get a job outside of Seattle.

A petition filed in Superior Court also states Mahoney is unable to find employment outside Seattle because his reputation has been damaged.

In reviewing the April 7, 2008 incident, former Police Chief Gil Kerlikowske concluded Mahoney was dishonest with investigators. Mahoney appealed his punishment to the Public Safety Civil Service Commission, which upheld the city's suspension and transfer, but the department failed to prove he was dishonest.

The explorer, Heather Newstrom, testified to the commission that Mahoney grabbed her and said "Now can I have a real kiss?" Mahoney testified that they'd exchanged kisses on the cheek, but said the allegation that he kissed her on the mouth was false.

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Higgins argued Thursday the commission should have amended the punishment after throwing out the most serious accusation of dishonesty. The commission applied the wrong legal standard to this case, he argued.

Assistant City Attorney Paul Olsen said in court Thursday the incident investigation and Mahoney's previous appeal to the chief of police shows the officer had adequate representation and that the case is based on more than an allegation.

He also argued that the chief had substantial evidence in making his decision.

Judge Paris Kallas noted the commission stated the standard of evidence in its ruling, but didn't detail it.

Olsen argued the commission didn't need to list a preponderance of evidence, when that was previously made clear. Higgins argued there was only one allegation by the teen, which was not a preponderance of evidence and said the commission should examine for preponderance of evidence.

Mahoney's petition, filed in October, states the commission failed to apply the proper burden of proof in the matter, and that the commission erroneously concluded that the police department manual contained language prohibiting contact with explorers.

It alleges Mahoney did not have proper notice and knowledge that inappropriate contact with the Newstrom, then 18, would result in disciplinary action against him. Department officials stated he had knowledge that inappropriate contact would lead to disciplinary action.

"The testimony was almost unanimous that Explorers and Officers hugged and kissed each other regularly," the court document states. "The Department alleges that Officer Mahoney kissed an Explorer inappropriately. There was no notice that kissing a legal adult on the lips would result in a harsh disciplinary penalty."

Higgins said that when the proper standard of evidence is applied, it's clear the city did not prove its case.

Though Mahoney denied kissing Newstrom, the department's Office of Professional Accountability found her more credible, saying she had no reason to make up her story. There were no independent witnesses.

She met Mahoney at 16 while taking his defensive tactics classes. Mahoney, who joined the department in 1998, is one of the department's experts on the use of force.

Higgins said last October Newstrom started hugging his client to say goodbye about six months before the 2008 incident, and started giving a peck on the cheek, like a European greeting. Newstrom told the Commission earlier this year that the officer had initiated the hugging and pecks, which she interpreted as fatherly and didn't find offensive.

Kerlikowske, now Director of the Office of National Drug Control Policy, testified to the Commission that he initially planned to fire Mahoney, but backpedaled on advice from the City Attorney's office that he lacked "clear and convincing" proof to terminate the officer for dishonesty, as required in the police guild contract.

But a record of dishonesty is essentially a career-killer anyway, damaging the officer's word in court and in police reports. Earlier this year, police guild leaders and Higgins questioned how the standard for proof was lowered in this case just because the officer didn't technically lose his job.

Mahoney said he drew Kerlikowske's scorn because he wrote a use-of-force analysis in support of two officers who were disciplined for beating a man outside a Capitol Hill nightclub over a littering complaint. The officers had asked him to do so because of his expertise. The case was one of two high-profile misconduct cases that led to a public controversy in 2007 over police accountability.

While Mahoney alleges department officials were searching for reasons to ruin his career, they didn't do so three years ago when Mahoney was accused of threatening to kill his ex-girlfriend and her fiancé, which triggered a criminal investigation, according to court records.

The prior case wasn't presented to the Civil Service Commission because no charges were filed.